Full opinion text
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND OPINION •ALLGOOD, District Judge. Invoking section 707 of Title VII of the Civil Rights Act of 1964, the plaintiff brought this action against the H. K. Porter Company (herein referred to as “the Company”) alleging a pattern or practice of resistance at the Company’s Connors Steel plant in Birmingham, Alabama. The United Steelworkers of America and its Local Union No. 2250 (herein collectively referred to as “the Union”) were thereafter joined as defendants pursuant to order of the court as parties needed for just adjudication under Rule 19 of the Federal Rules of Civil Procedure. It has been observed with some truth that judges are too busy to write short opinions and therefore write long ones. At the outset, therefore, the court should say that the length of this opinion is in direct relation to the substantial, complex, and important dimensions of the case, both in the proceedings before trial, in the trial itself, and in study by the court of the evidence and the briefs following completion of the trial. The pre-trial proceedings included not only enough use of the discovery procedures to fill several court files but the holding of two pre-trial conferences as well. The first pre-trial conference was adjourned by the court at the joint request of counsel to permit the preparation of a proposed order defining the issues of fact to be tried. When this was not productive of agreement, the court held another conference and at that time entered a pre-trial order based upon the proposed order which had been originally prepared by the plaintiff. Moreover, when the matters covered during the trial raised issues which had not been set forth in the pre-trial order, the court allowed their introduction in the interest of full and final adjudication and has considered them as issues in the case as if they had been embodied in the pre-trial formulation of the issues. The case was tried before the court on eight days between August 12 and August 21, 1968 in a comprehensive and exhaustive presentation of the evidence. Thereafter, following several extensions of time requested by the plaintiff, the post-trial briefs were filed in November. Through a pre-trial brief filed by the Company, several briefs filed by the plaintiff during the trial, and the post-trial briefs, the court has had the benefit of comprehensive briefing. It has similarly been most helpful to the court in analyzing the legislative history of Title YII in context to have been provided both with photocopies of the pages of the Congressional Record setting forth the prepared explanations and analyses of the provisions of this title and with the compilation of the legislative history which has been prepared and published by the Equal Employment Opportunity Commission. I. FINDINGS OF FACT AND CONCLUSIONS OF LAW Based on careful observation of the witnesses and consideration of their testimony during the trial and on detailed study of the evidence and the briefs since the trial, the court is firm in entering the findings of fact and the conclusions of law which follow therefrom. Before doing so, the court should comment on the approach which has been taken in deciding this case. The court is aware of the fact that through the litigation of section 707 cases, the Attorney General is seeking to establish general propositions regarding the application of Title VII to certain employment situations and actions. But while recognizing the desirability for enforcement purposes of having general propositions answered by the judiciary in categorical terms one way or the other, the court is convinced that both the proper administration of the statute and the goal of equality in employment opportunities will best be served by the essentially pragmatic approach of judging each case in the light of its own facts and the actual problems to be resolved. As the Supreme Court said in declining the Government’s request for the promulgation of definitive standards in the context of a tax statute, “while the principles urged by the Government may, in nonabsolute form as crystallizations of experience, prove persuasive to the trier of facts in a particular case, neither they, nor any more detailed statement than has been made, can be laid down as a matter of law * * * the question here remains basically one of fact, for determination on a case-by-case basis.” Moreover, the mechanistic approach urged by the Attorney General would be manifestly incompatible with the traditional principle of equity jurisdiction that decrees are to be molded to the circumstances of the particular case. The thought expressed by Justice Douglas is a sound proposition although set forth in a dissenting opinion, and it speaks equally to the subject here: “If the federal court is to be merely an automaton stamping the papers an Attorney General presents, the judicial function rises to no higher level than an IBM machine. Those who grew up with equity and know its great history should never tolerate that mechanical conception.” The court further believes that some of the concepts which have been urged as the solutions in this area provide more academic interest than practical answers to actual problems. The concepts of “status quo”, “rightful place”, and “freedom now” provoke stimulating thought, but they are, after all, no more than labels which can too easily lend themselves to serving as substitutes for critical analysis or, in the words of Judge Learned Hand, as “anodynes for the pains of reasoning.” For these reasons, the findings, conclusions, and order which are here entered are based on the particular evidence of this case and not on categorical answers to the broad propositions urged by the Attorney General. The court will set forth these findings and resulting conclusions in the order which provides the most logical development of the facts in their entirety. This order of analysis should therefore not be taken as an expression of the relative importance of any subject or fact in the case. To expedite reference to specific subjects, the court will prepare and attach to this opinion an index of the subjects herein analyzed. A. General: 1. (a) The pattern or practice averred by the complaint and amended complaints is alleged to have been engaged in at the Company’s Connors Steel plant located in this judicial district, and the employment records relating thereto are maintained and administered in this district. (b) The Attorney General is authorized to have brought this action by section 707 of Title VII, the Company and the Union are both within the coverage of the provisions of Title VII, and the court has jurisdiction of the parties and the subject matter of this action. 2. The Company is engaged at its Connors Steel plant in the production of steel products, consisting primarily of bars, angles, and shapes. Described in brief outline, the production process follows the sequence of melting raw materials in electric furnaces to produce molten metal, casting the molten metal into billets by means of a four story high continuous casting facility known as the tower (which was installed in 1964 as one of the first such facilities in the country), rolling the billets on the rolling mills to the specified sizes and shapes, and then fabricating and finishing the products. 3. (a) The jobs and the employees which are the subject of this case are primarily in the production and maintenance bargaining unit, for which the Union is and has been the collective bargaining representative since the early 1940 s. The only non-supervisory employees who are not within the production and maintenance unit are the guards, supply house employees, and clerical personnel. (b) There are some 739 production and maintenance employees, of which 418 are white and 321 are Negro. 4. The Union contract which was in effect at the time that this case was tried was a three year agreement which had become effective on October 1, 1965 and expired on September 1, 1968. Since then, the Company and the Union negotiated and entered into a new contract which became effective on September 1, 1968. 5. (a) The operations of the Company’s plant are set up on a departmental basis in accordance with the type of work performed by each department and in common with the organizational structure of plants in the steel industry generally. The departments, and their basic functions, are as follows, in alphabetical order: (1) Brickmason, which relines and maintains the furnaces, ladles, tundishes, and related equipment used in the melting and casting operations. (2) Building Maintenance, which maintains the plant buildings and facilities. (3) Cold Draw, which produces cold drawn bars to a close tolerance finish by drawing or pulling semi-finished bars through dies. (4) Electric Furnace, which produces the billets by melting the raw materials in electric furnaces and casting the molten metal through the continuous casting tower. (5) Electrical, which consists of the electrician jobs and the craneman jobs which operate the overhead cranes throughout the plant. (6) Fabricating, which shears, bends, and forms bars to be- used as concrete reinforcing material. (7) Finishing, which performs such finishing operations as angle straightening, reshearing operations, weighing, and shipping. This department is also referred to as the Hoop Shop, which is the name used in the days before the creation of the departments. (8) Laboratory, which performs chemical and metallurgical analyses of the molten metal, continuous casts, billets, and finished products. (9) Mechanical, which consists of the machine shop, carpenter shop, blacksmith shop, mechanics, welders, and mill-rights. (10) Mill Auxiliary, which performs auxiliary functions before, during, and after the rolling of the steel products on the rolling mills. (11) Mill Rolling, which performs the rolling functions on the rolling mills. This department is also referred to as Mill Tonnage because the incentive rate of the department is based on the tonnage of steel products which are rolled. (12) Rail Yard, which cuts scrap with acetylene torches and moves billets to storage areas in the yard. This department is also referred to as the Railbreaker because one of the functions formerly performed there was the breaking of rails. (13) Roll Shop, where the rolls which are used on the rolling mills are machined to the specified tolerances on roll turning lathes. (14) Switch Yard, which consists of the locomotive engine used in the switching of railroad cars and the locomotive crane used to deliver scrap metal to the Electric Furnace department to be melted. (15) Supply, which receives and stores materials used in the plant operations. (16) Guard (also known as Plant Protection), which consists of the watchmen. (Supply House and Guard are listed last because they have not been the subject of any allegations or argument). (b) The court finds from the evidence that the jobs within each department require skills and abilities which differ from one department to another and that each department has a specific function of its own in the overall operations of the plant. The court similarly finds that the departmental structure of the plant provides the benefit to the Company and to employees of becoming proficient in and accustomed to the particular type of operations performed by a department. (c) The departmental structure was for the most part created from the then existing shops and crews when the Union was organized in the early 1940’s. For example, the Electric Shop became the Electrical department, the Fab Shop became the Fabricating department, the Hoop Shop became the Finishing department, the Mill Auxiliary Crew became the Mill Auxiliary department, and the Mill Rolling (also referred to as Tonnage) Crew became the Mill Rolling department. There are three departments which were established subsequent to the organization of the Union. They are the Building Maintenance department, the Cold Draw department, and the Switch Yard department. 6. (a) The majority of the jobs are arranged in lines of progression within their departments, by which employees advance from the entry job through the progression line to the highest rated jobs in the department. There is one line of progression in each of the departments except the Mechanical department, which is composed of the Machine Shop progression line, the Blacksmith progression line, the Millwright-Welder progression line, the Mechanic progression line, and the Carpenter Shop progression line. (b) The evidence shows that with one exception, which is discussed below, the jobs in the lines of progression provide training and experience for the successive higher rated jobs in the progression line and that the employees holding jobs in a line of progression are dependent upon one another both for the proper performance of their jobs and for their safety in this hazardous steel producing industrial plant, and the court so finds.' An example is provided by the jobs of Rougher and Manipulator Operator in the Mill Rolling department. The Roughers are stationed on the breakdown mill on moving tilt tables which are controlled from an overhead pulpit by the Manipulator Operator. The Roughers are dependent upon the Manipulator Operator to raise and lower the tilt tables at the proper times, in coordination with the movement of bars through the mill, and if the Manipulator Operator should fail to do so, one result would be the delivery of the red hot bar in the face of the Rougher. (c) The only evidence to the contrary consisted of the position, expressed by the Company in the argument of a grievance several years ago, that the jobs in the Carpenter Shop “were not such that they afforded training for employees to become qualified carpenters.” Based on this evidence, the court finds that the jobs in the Carpenter Shop line of progression constitute an exception to the fact that the jobs in the lines of progression provide training for the successive jobs in the progression line. 7. Advancement in the lines of progression is by means of temporary step-ups and advancement on permanent assignments. The temporary step-ups take place daily and constantly by reason of such factors as temporary increases in operations, vacations, and absenteeism. The result is that unlike the situation in some industrial plants, where an employee holds and works a definite job until selected for promotion to the next higher job, the procedure at this plant is that there are daily step-ups and that an employee may therefore work several jobs in a progression line in one work week. An employee is regarded as having advanced to a job on permanent assignment when, at a normal level of operations and with all of the employees working, he is regularly scheduled to work that job or higher rated jobs and will not be scheduled to work a lower rated job. 8. (a) An employee may decline to advance in the line of progression and thus freeze himself voluntarily on a job, for such reasons as preferring the work or desiring to stay on the shift to which he is assigned on the job. (b) An employee who is deemed by the Company to lack the ability to perform the duties of the job which he is working is subject to being disqualified and thus involuntarily frozen on the job below it in the progression line. (c) An employee who has voluntarily frozen has the right to unfreeze himself and to resume advancing in the line of progression. An employee who has been involuntarily frozen similarly has the right to another try at the job from which he was disqualified and to resume advancing in the line of progression if he can satisfactorily perform the job. An employee who has been involuntarily frozen has the further right to file a grievance through the Union challenging the disqualification. 9. There is a Labor Pool, which is composed of employees who work in general labor jobs such as truck driver and fork lift operator and newly hired employees who start in the Labor Pool before transferring to departments. 10. Prior to the Fall of 1962, there was racial segregation in the jobs, so that in departments having employees of both races, there was one line of progression composed of white employees and another line of progression composed of Negro employees. In the Fall of 1962, the Company signed a compliance agreement under Executive Order No. 10925, which had been issued by President Kennedy in 1961 and provided for equal employment opportunity by companies entering into and holding Government contracts, and, in implementation of the Order, the Company and the Union integrated the lines of progression in October of 1962. The Attorney General has argued that this merger of the lines of progression placed the Negro employees “at the bottom of each line of progression.” However, this argument is not sustained by the evidence. Instead, the evidence shows, and the court finds, that the standard which was adopted and applied by the Company in determining the placement of jobs in this integration of the progression lines was the base wage rate of the jobs and that the result of the application of this standard was that in three of the integrated progression lines, Negro employees were placed in higher rated jobs ahead of white employees in lower rated jobs and have since then continued to progress ahead of the white employees. 11. This case has more than once given the impression of being concerned with different frames of reference from the standpoint of time, with the Attorney General having introduced considerable evidence and having placed substantial reliance on events occurring prior to July of 1965 when Title VII became effective and, for that matter, prior to October of 1962 when the lines of progression were integrated. Therefore, before proceeding to analysis of the specific facts, it would be in order to comment on the period of time encompassed by the case. On this point, the court is of the opinion that because the present cannot be fully analyzed and understood without consideration of the past, evidence of past events antedating the effective date of Title VII is competent and relevant. In this case, therefore, the evidence regarding events antedating both the effective date of Title VII in 1965 and the integration of the progression lines in 1962 was admitted and has been considered by the court for this purpose. B. Reports by the Equal Employment Opportunity Office: The status of the Company’s compliance with the Executive Order was under the jurisdiction of the Equal Employment Opportunity Office of the Army Materiel Command, which in turn functioned under the then President’s Committee on Equal Employment Opportunity. Beginning in 1963 and continuing into 1965, the Company’s equal employment opportunity program was the subject of periodic reviews, inspections, investigations, and discussions which were for the most part conducted by Dr. Hugh A. Brimm, who was at the time Chief of the Equal Employment Opportunity Office and is now with the Civil Rights Office of the Department of Health, Education and Welfare. The result of these contacts by the Equal Employment Opportunity Office was a series of written reports expressing the findings or opinions that the Company was in compliance and was not discriminating against Negro employees. For example, the general ten- or of these reports may be illustrated by one report which stated that “Negroes have moved into some of the jobs very close to the top” and by another report which stated that “It is believed that Connors Steel Division has a good equal employment opportunity posture and the Company is attempting to improve constantly.” The contacts by the Equal Employment Opportunity Office further included the advice, received by the Company in 1964, that “Your testing program appears to be appropriate and properly administered” and the advice, received by the Company in 1965, that the adoption of a transfer privileges procedure (hereinafter to be discussed) “will achieve the desired compliance posture”. The Company’s introduction of evidence regarding these matters and the Attorney General’s insistence that the evidence was completely immaterial brought about still another contested issue in this complex case. The initial ground of the Attorney General’s objection to this evidence consisted of the argument that the status of compliance with the Executive Order must be treated as irrelevant to the determination of compliance with Title VII and that the actions taken by the Equal Employment Opportunity Office could not be binding on the court. The court is fully in agreement with the Attorney General that the status of compliance under the Executive Order is in no way conclusive or binding on the court. The question of compliance vel non must be measured solely within the framework of Title VII, and it is therefore both the right and duty of the court to adjudicate this case within the framework of Title VII and without being bound in the least by the status of compliance as determined by the agencies administering the Executive Order. The court therefore holds, in agreement with the Attorney General, that the reports by and advice from the Equal Employment Opportunity Office are in no way res judicata, binding, or grounds of estoppel. But it is quite another and different matter to say that evidence regarding the actions taken by the Company to comply with the Executive Order and the reports and approvals by the Equal Employment Opportunity Office must be treated as “irrelevant and not pertinent to the issues in the case” as urged by the Attorney General. The Company has argued that this evidence is relevant with respect to the element of section 707 that the alleged pattern or practice be intended to deny the exercise of rights, in that statements such as “the Company is attempting to improve constantly” may be considered on the issue of intent. It is further argued by the Company that compliance with the Executive Order may be considered in connection with compliance with Title VII for the reason that Senator Humphrey spoke of the title as being “much less stringent language, and much less in coverage than what was provided by the executive order”. However, it is not necessary for purposes of this case to resolve these points. The Attorney General has based its case almost entirely on the situation which existed-before October of 1962 and on the argument that the steps taken by the Company in October of 1962 were inadequate to constitute compliance with Title VII when it became effective in 1965. Therefore, with the Attorney General having opened this door in presenting its case, it would be most anomalous to close this door to the defendants in presenting their case. At the trial, the Attorney General raised the further contention that in advising the Company that its testing program was proper and fairly administered and that the adoption of the transfer procedure would achieve the desired compliance posture, Dr. Brimm acted beyond the scope of his authority as Chief of the Equal Employment Opportunity Office. However, since the court has held, in agreement with the plaintiff, that the actions taken by Dr. Brimm are in no way binding in the case, this question is academic. The Attorney General’s third point on this issue, argued in the briefs, is that the reports written by Dr. Brimm were based on “inadequate investigations”. But this argument speaks to the weight to be given to the evidence and not to the question of admissibility. Moreover, the only evidence touching on this point was Dr. Brimm’s testimony that “My contact with the company was a continuing contact over a period of approximately two years.” In sum total, the court agrees with the Attorney General that the reports and approvals are not in the least binding or conclusive, but it cannot agree that they are completely immaterial and must be entirely disregarded. The court is instead of the opinion that they may properly be considered as another item of evidence together with all of the other considerable evidence in the case. At the same time, however, the court has at no point in analysis of this case relied on any finding or opinion expressed by these reports and advice. C. Advancement in the lines of progression: 1. Following the integration of the lines of progression, the Negro employees who were then employed began advancing in the merged lines of progression into jobs which had theretofore been held by white employees, with the result that in the month of October of Í962, there were 63 shifts worked by Negro employees in jobs which had previously been held by white employees. The Negro employees who have been hired and who have transferred into departments subsequent to October of 1962 have similarly been advancing in the integrated lines of progression. 2. The Attorney General has emphasized in argument the fact that there are no Negro employees in the Building Maintenance department, Laboratory, Machine Shop, and Mechanic progession line and that the Negro employees in the Blacksmith Shop and Roll Shop have not advanced. The court agrees with these facts emphasized by the Attorney General but cannot find that they show denials of equal opportunities in employment. For example, there are only three employees in the Building Maintenance department, seven employees in the Laboratory, three employees in the Blacksmith Shop, and two employees in the Mechanic progression line. Similarly, it was shown by the evidence that the reason the Negro employee in the Roll Shop has not advanced was that he was disqualified from the Crane-man job in 1963, and there is no evidence or argument from which it might be inferred that such action was improper. 3. Having considered this argument relied on by the Attorney General, the court should now consider the evidence regarding the advancement of the Negro employees in the other departments of the plant. On this point, the court finds that as the result of the fact that they have been advancing in the integrated lines of progression since October of 1962, the jobs to which Negro employees had advanced at the time of the trial were as follows, with the level of the jobs in the progression lines being set forth to provide an explanation of the situation: (a) In the Brickmason department, to Brickmason, which is, except for the Leaderman, the highest rated of the four jobs in the department. (b) In the Carpenter Shop, to Painter, which is the third job from the top of the seven jobs in the department. (c) In the Cold Draw department, to Record Clerk, which is the third job from the top of the twenty-one jobs in the department. (d) In the Electrical department, to Spell Craneman — Charging and Charging Maintenance, which is the seventh job from the top of the twenty-six jobs in the common line and the craneman line of the department. (e) In the Electric Furnace department, to Melter Helper (also known as Furnace Operator), which is the second job from the top of the twelve jobs in the department. (f) In the Fabricating department, to Tagman, which is the third job from the top of the twenty-one jobs in the department. (g) In the Finishing department, to Straightner Operator, which is the second job from the top of the fifteen jobs in the department. (h) In the Mechanical department, to Millwright, which is, except for the Leaderman and the Foreman, the highest rated of the seven jobs in the common line and the Millwright line of the department. (i) In the Mill Auxiliary department, to Inspector, which is the highest rated of the twenty-one jobs in the department. (j) In the Mill Rolling department, to Layover, which is the thirteenth job from the top of the nineteen jobs in the department. (k) In the Rail Yard department, to Burner, which is now the highest rated of the seven jobs in the department. (Scarier, which was the highest rated job, is no longer in operation). (l) In the Switch Yard department, to Locomotive Crane Operator, which is the highest rated of the four jobs in the department. The court similarly finds that as a result of the fact that they have been advancing in the lines of progression since October of 1962, Negro employees were at the time of the trial holding permanent assignments on jobs which are among the higher rated jobs in the plant. Such jobs held by Negro employees on permanent assignment include the jobs of Locomotive Crane Operator in the Switch Yard department, Brickmason in the Brickmason department, Millwright in the Mechanical department, Towerman in the Electric Furnace department, Weighman in the Finishing department, Shear Leaderman in the Fabricating department, Draw Bench Operator in the Cold Draw department, and Craneman in the Electrical department. 4. While not disagreeing with the evidence regarding these jobs which are held by Negro employees, the Attorney General has responded to it by the argument that the Company was defending on the ground that “improvement” in employment opportunities is enough. The court fully agrees with the Attorney General that improvement in employment opportunities cannot in and of itself constitute compliance with the rights secured by Title VII. But at the same time, the court has heard nothing from the defendants, in argument or in evidence, from which it could be inferred that exoneration was being sought on a defense of improvement. Moreover, with the Attorney General having placed considerable reliance in argument and in evidence on events antedating October of 1962, the court could not fairly or reasonably deny the defendants the right to present evidence regarding events which have taken place since October of 1962. D. Transfers between departments: 1. Prior to the negotiation of the Union contract in 1965, an employee who transferred from one department to another lost the seniority which he had accumulated in the department from which he transferred. Therefore, if he subsequently returned to that department, he had to start over again as a new employee at the bottom of the departmental seniority list. For this reason, employees who transferred to another department and then found they did not like or could not perform the work in the new department could not return to their former departments and regain their seniority. Similarly, in case of a reduction in force in their new departments, employees ran the risk of being laid off because they could not return to their former departments and work there with their retained seniority. This was illustrated in the evidence by cases of employees (who were white) who transferred prior to 1965 from one department to another, were cut back due to reductions in force in their new departments, and returned to their former departments as new men at the bottom of the seniority list. 2. This- matter was the subject of discussions in 1965 between the Company’s Vice-President B. Campbell Blake and Dr. Brimm of the Equal Employment Opportunity Office. As related in more detail in one of the reports produced by the Attorney General pursuant to Rule 34 discovery in this case, the circumstances were that “the Negro complainants most frequently referred to the fact that in order to transfer from one line of progression, they would have to give up their seniority in the line that they were leaving” so that “in the event of a cut-back or lay-off, then they would be faced with the possibility of having to go out on the street” and that “This barrier to transfer was pointed out to Management”. The result of these discussions was that Vice-President Blake proposed to Dr. Brimm the adoption of a new transfer procedure to encourage transfers between departments by the Negro employees. Specifically, he proposed that the Company would adopt a procedure by which employees who transfer between departments would retain in the department from which they transferred the seniority they had accumulated so they could then return and regain their accumulated seniority if they wished to do so or if they needed to do so because of a reduction in force. 3. This proposed transfer procedure was drafted and submitted by the Company to Dr. Brimm for review, and he advised the Company in reply that he had discussed the proposal with his Washington office and that “I have a concurrence from them that this change will achieve the desired compliance posture.” The Company thereafter presented this proposed procedure to the Union in the contract negotiations which were being held in that year. The procedure was then agreed to, incorporated in the contract as the transfer privileges section, and became effective as of October 1, 1965. This new transfer procedure was called to the attention of the employees by being printed in bold face type in the contract as printed in the Employees Handbook distributed to employees by notices which were posted on the bulletin boards, and by notices which were enclosed in the employees’ pay envelopes. It was also discussed at Union membership meetings at the time it was negotiated and placed in the Union contract. 4. There can be no doubt from the evidence, there is no contention to the contrary, and the court finds that this transfer privileges section was adopted by the Company and the Union for the benefit of the Negro employees and to encourage Negro employees to transfer to departments providing greater opportunities for earnings and advancement. The evidence before the court similarly provides several examples of the advantages offered by this transfer privileges section. For one, the evidence shows cases of Negro employees who have transferred and then have returned to their former departments with their retained seniority. Another advantage shown by the evidence is that because of this transfer privileges section, employees are now provided with steady work while they build up enough seniority in their new departments to be regularly scheduled, in that they are able to work in their former department as well as in their new department. This was illustrated by the testimony of one of the witnesses for the Attorney General that he had transferred from the Mill Auxiliary department to the Mill Rolling department some three weeks before the trial and was at the time of the trial working in both departments until, he had enough seniority to be scheduled regularly in the Mill Rolling department. 5. The fact that a procedure which has been adopted for the benefit of Negro employees is unique is certainly a long way from proving compliance with the law, since that is a question which must be answered in terms of the requirements of the statute and not in terms of the situation within the industry. At the same time, it is relevant, as a point bearing on the circumstances of the proposal and adoption of the transfer privileges section, that the common situation in the steel industry is that employees forfeit their seniority when they transfer and are not able to hold seniority rights in more than one department or promotional sequence and that the transfer section adopted by this Company and Union is unique. 6. With this background, the court will now consider the arguments advanced by the Attorney General in attacking the transfer privileges section. By way of preface, it should be said that in analyzing this issue, the court has excluded from consideration both the fact that the transfer section was proposed by the Company for the benefit of Negro employees and the fact that the Company was advised that the adoption of this transfer section would achieve the desired compliance posture. 7. To begin with, during the pre-trial stages of the case, there was some contention by the Attorney General to the effect that the transfer privileges section imposed requirements on Negro employees to which white employees are not subject. However, the evidence conclusively established that white employees are identically and equally subject to each of the requirements for transfer. The evidence shows that white employees must meet the minimum aptitude standards of the departments to which transfer is requested, that there has been no relaxation of this requirement for white employees, and that there have been white employees whose transfer requests have been denied on this ground at the same time that Negro employees have been transferred to the departments unsuccessfully requested by the white employees. The evidence likewise shows that white employees who transfer must start in the entry job in the new department and from there work their way up the line of progression, must take a wage reduction where the rate of the entry job in the new department is less than the rate of the job which they held in-the former department, and do not take with them in transferring the seniority which they accumulated in the department from which they transferred. The court therefore finds that these are the facts. Moreover, the pre-trial contention on this aspect of the subject may now properly be regarded as having been withdrawn, since the Attorney General has agreed in the post-trial brief that the requirements for transfer apply to both white and Negro employees. 8. Instead, the theory which the Attorney General urges in the post-trial brief is that there should be no requirements for transfer, that “unrestricted transfers should be permitted to vacant jobs”, and that the court should order the abolishment of the departmental seniority structure and the creation of a new plant-wide seniority and job bidding system. This theory is the principal point of the Attorney General’s comprehensive post-trial brief. The argument is that the transfer privileges section should be abolished and replaced by an “unrestricted transfer” plan by which the present system of departmental seniority would be abolished and replaced by a system of plant-wide seniority and by which the present procedure of advancement in the lines of progression would be abolished and replaced by a plant-wide bidding procedure. This result is necessary, in the Attorney General’s view, to compensate the Negro employees for the segregation which existed prior to October of 1962 and to achieve a more proportionate racial balance in the departments. To illustrate this point, the Attorney General’s brief compares the employment histories of Negro and white employees who were hired in years prior to 1962 and argues that the Negro employees must be given these unrestricted plant-wide transfer and bidding rights to place them where they might have been had it not been for the situation which existed prior to 1962. For one example, the Attorney General compares the employment history of a Negro employee in the Electric Furnace department who was hired in 1953 with the employment history of white employees who were also hired in 1953 and argues that the plant-wide transfer and bidding plan is necessary to compensate for the fact that the white employees were able to work their way up to their present status during the years before 1962. Similarly, to illustrate the point of the theory that the transfer and bidding plan is necessary to achieve a proportionate racial balance throughout the departments, the Attorney General has prepared and relies on numerical and percentage distributions of Negro and white employees in each of the departments. With the Attorney General proposing this plant-wide bidding system as the means of compensating Negro employees for the years prior to 1962 and to achieve a proportionate racial balance, the initial question which is raised is whether Title VII should properly be construed as speaking prospectively or retroactively from the time it became effective in July of 1965. The theories which have thus far been expressed on this question have tended to view the matter in terms of absolute and immutable concepts. The concept urged by the Attorney General is that Title VII must be construed as requiring that Negro employees be placed where they might have been today had it not been for segregation which existed before Title VII became effective. For this concept, the Attorney General relies on the decisions of Judge Heebe in the Crown Zellerbach case and of Judge Butzner in the Philip Morris case and the law review espousals of the “rightful place” concept. Another view of the matter is that Title VII should properly be construed as having a prospective and not retroactive operation and that it was not intended to require the realignment of rights of seniority as they existed when the title became effective. This view is represented by several passages of the legislative history, including the memorandum which was prepared by the Justice Department for the co-floor manager of Title VII and which expressed the position that “It has been asserted that Title VII would undermine vested rights of seniority. This is not correct. Title VII would have no effect on seniority rights existing at the time it takes effect * * * This would be true even in the case where owing to discrimination prior to the effective date of the title, white workers had more seniority then Negroes” and by the explanation set forth in the interpretative memorandum of the title by its co-floor managers that “Title VII would have no effect on established seniority rights. Its effect is prospective and not retroactive.” This view is similarly represented by the interpretations expressed by Judge Hogan in the Dobbins case, by Judge Meredith in the Sheet Metal Workers case, and by Judge Gordon in the Duke Power case, as illustrated by the passages that “The Civil Rights Act of 1964 was not intended to penalize unions or others for their sins prior to the effective date of the Act. It is prospective only” and that “In providing for prospective application only, Congress faced the cold, hard facts of past discrimination and the resulting inequities. Congress also realized the practical impossibility of eradicating all the consequences of past discrimination.” Having carefully studied this matter and the authorities speaking on the subject, the court has reached the firm conviction that the dogmatic approach of attempting to fit a case into the confines of one or the other theoretical concept is not the answer. We are entering an area of the law which has quite accurately been characterized as a yet uncharted sea, and nothing could be more productive of erroneous results and more detrimental to the purposes spelled out by Congress in the enactment of this statute than to adopt the mechanistic approach of applying one or the other concept. For example, with specific reference to the subject of transfers, the Attorney General relies on the Philip Morris case while the Company relies on the Duke Power Co. case. But the fanciful prediction of the day when the judges of our judicial system will be replaced by computers has not yet come, and the courts cannot be expected to sit in computer-like fashion and be fed a control card marked Philip Morris on the one hand or Duke Power Co. on the other hand to produce the proper decision in every case concerning transfers. That may be the easy approach to the judicial resolution of a case, but it is most assuredly not the proper discharge of the responsibilities that a court has under Rule 52. For this reason, and consistent with the overall approach taken in resolving the issues in this case, the court will not select one or the other concept as the answer to this question but will resolve the issues in terms of the particular facts of this case. The court has no doubt that from having heard the evidence in the Philip Morris case, Judge Butzner reached the result which was proper on the facts of that case. But this is another case and another set of facts, and this court is thoroughly convinced from having heard the evidence in this case that the facts here will not sustain the result sought by the Attorney General. This is so for several reasons which do not stand separate and independent of one another but will be discussed separately in the interest of analysis. (a) First, this is not a case where there have been no opportunities for advancement and higher earnings for Negro employees in the departments to which they were originally assigned and where the only means of advancement has therefore been through transfers to other departments. A district court judge, more than anyone else, should be mindful of the limitations inherent in attempting to recapture and relate in the pages of a written opinion the total composite of the ingredients of a trial, consisting not only of the recorded evidence but as well the impressions and subleties resulting from the questions of counsel and the answers of the witnesses. As Justice Frankfurter has said, “no finder of fact can see through the eyes of any other finder of fact.” Despite these limitations, the opinion in the Philip Morris case shows that the court was there dealing with a factual setting where the only route of advancement for the Negro employees was by means of transfer to other departments. Thus, the facts of the case, as set forth in the opinion, were that the Negro employees with respect to whom relief was granted were in departments composed entirely of jobs which had previously been held by Negro employees. The departments contained no higher rated jobs which had previously been held by white employees, there was accordingly no opportunity for upward mobility within these departments, and the result was that the only means of providing job advancement to the Negro employees in these departments was through transfers to other departments. This was accordingly the result reached by the court in that case. The facts of this case, on the other hand, are quite different. Each of the departments in which Negro employees were working in 1962 contained higher rated jobs which had until then been held by white employees, the Negro employees with respect to whom relief is here sought have been and are provided with substantial opportunities for job advancement by means of progression into these higher rated jobs, and their advancement into these jobs has been substantial. (b) Second, the fundamental premise relied on by the Attorney General for the plant-wide transfer and bidding program is the argument that the Negro employees are “locked in low-opportunity departments” without the means of transferring and that the plant-wide bidding program is necessary to enable them to “break out” of the departments in which they are allegedly locked. There may well be cases where this argument will be based on a factual foundation. The Philip Morris case, for one, presented a situation where the opportunities for departmental transfers which were available to Negro employees were obviously limited. This fact is reflected in the court’s findings that “Until January 1, 1966 the Company, with token exceptions, established its departmental seniority system on the basis of racial discrimination in its hiring policy,” that “not until March 7, 1966 did the Company and the Union amend the collective bargaining agreement to allow employees to transfer from prefabrication under a note of intent at the rate of one a month when vacancies exist to basic labor jobs in warehouse shipping and receiving”, that transfers under the note of intent procedure to the fabrication department were within the discretion of management and the recommendation of the employees’ supervisors, and that transfers under the six months agreement procedure were limited to four transfers every six months. But there is nothing in the least comparable in the evidence in this case, and having heard the evidence in this case, the court could not properly accept the argument that Negro employees are “locked in” departments. The evidence in this case first shows, and the court finds, that since October of 1962, the opportunities for transfer available to the Negro employees have been on an identical equality with the opportunities available to the white employees. The evidence similarly shows, and the court finds, that the adoption of the transfer privileges section in 1965 substantially broadened the transfer opportunities available, that the Negro employees have without discrimination availed themselves of the opportunities available under this transfer section, and that those who have done so have advanced substantially in the departments to which they have transferred. While not disagreeing with the evidence establishing these facts, the Attorney General has instead placed reliance on the fact that the majority of the jobs in the Finishing, Fabricating, and Mill Auxiliary departments were held by Negro employees prior to October of 1962 and that because most of those Negro employees who were employed in 1962 have not transferred, the majority of the employees in those three departments are Negro. It is certainly true that “In the problem of racial discrimination, statistics often tell much, and Courts listen.” But the courts cannot be expected to listen to only part of the evidence. If the evidence had shown nothing more than the statistical fact that a majority of the employees in the Finishing, Fabricating, and Mill Auxiliary departments are Negro, then a factual predicate for the Attorney General’s theory might have been established. But that is not the situation presented by the evidence in this case. The court must in the first place listen to the evidence that the Negro employees have been able to avail themselves without difficulty of the transfer rights provided by the transfer privileges section. Arguing for a contrary finding on this point, the Attorney General points to the testimony at the trial of a Negro employee that he was not aware of the transfer privileges section until February of 1968, when he saw a notice on the bulletin board regarding openings in several departments. He further testified that he discussed the matter of transfer rights with Personnel Director Norman Wagner at that time, “was pleased with his explanation”, and applied for a transfer to the Mill Rolling department, to which he was transferred about a week later. However, there is no dispute with the testimony that the transfer privileges section was specifically called to the attention of the employees by notices which were placed in the employees’ pay envelopes and which were posted on the bulletin boards, that the Employees Handbook containing the transfer section was made available to the employees, and that the transfer section was discussed and explained at Union membership meetings. Moreover, when this witness was asked if he had ever looked at the Employees Handbook, he replied that he had not done so. Based on the evidence, therefore, the court finds that the Company has adequately publicized the transfer rights available. The court must similarly find from the evidence that the Negro employees who have availed themselves of the transfer rights available have benefited substantially by doing so. On this point, the evidence shows that at the time of the trial, Negro employees who had transferred from the Finishing, Fabricating, and Mill Auxiliary departments were working in such jobs as Brickmason in the Brickmason department, Crane-man in the Electrical department, Ladle-man in the Electric Furnace department, and Ringout Saw Operator and Roll Changer Grade III in the Mill Rolling department. The court must likewise find from the evidence that the transfer rights available provide the opportunity for increased earnings. For example, there is the evidence regarding a Negro employee in the Fabricating department who applied for and received a transfer to the Mill Rolling department in December of 1966 and who had a higher average hourly wage rate during the first six months of 1968 than all but one of the white employees who remained in the Fabricating department when he transferred. The evidence on this point similarly shows that three of the white employees who had lower hourly earnings were hired before he was and that the one white employee who had higher hourly earnings is a foreman who was hired in 1936. In the second place, the argument that Negro employees are “locked” in the Finishing, Fabricating, and Mill Auxiliary departments disregards the fact that the employees who are allegedly “locked” in these departments consist primarily of men who have elected not to progress within these departments or who have not requested transfers. Thus, the evidence shows, and the court finds, that the majority of the Negro employees in the Fabricating, Finishing, and Mill Auxiliary departments have voluntarily frozen themselves on jobs and thereby elected not to progress in these departments and similarly that the majority of the Negro employees in these departments have not applied for transfers. The argument that the Negro employees are “locked” in the Fabricating, Finishing, and Mill Auxiliary departments furthermore disregards the fact, which the court finds from the evidence, that of the Negro employees who have applied for transfers from these three departments during the period since 1962, there have been 9 who were not eligible for transfer while there have been 23 who were eligible for transfer and who were transferred to the departments which they requested, including the Mill Rolling, Electric Furnace, Brick-mason, Electrical, and Mechanical departments. The testimony further established that employees have declined the Company’s offers of training for the higher rated jobs of Inspector, Assistant Foreman, and Yardman in the Mill Auxiliary department or have voluntarily given up the jobs after they had been trained. For example, the Attorney General called four Negro employees who are in the Mill Auxiliary department as witnesses. Of these employees, one testified that the Company offered him training on the Yardman job, which he declined because of ulcers, and that the Company then offered him training on the Assistant Foreman job, which he accepted. Another testified that the Company trained him on the Yardman job in 1962 and also trained him on the Inspector job but that he voluntarily gave up both jobs in 1964. Another testified that the Company offered him training on the Inspector job, which he declined, and that he had also elected to decline training for the Yardman and Assistant Foreman jobs as well as the Inspector job. The fourth witness testified that he had received a notice from the Company saying he could become Assistant Foreman. This is not to say that failure to take advantage of existing opportunities may in every case be a factor militating against the type of result here sought by the Attorney General. There may well be cases where it would not do so, such as where the opportunities available are minimal or essentially illusory or otherwise properly to be regarded as a case of too little and too late. What the court is saying is that given the facts of this case, establishing beyond question that substantial and meaningful opportunities have been available for years and that those who have availed themselves of these opportunities have proven that the opportunities are real, the Attorney General’s argument for the plant-wide transfer and bidding plan for those who have elected not to avail themselves of the existing opportunities has little to commend it. (c) Third, the Attorney General has further argued this case on the premise that the departmental structure of the Company’s plant is not based on legitimate operational considerations and could therefore be properly replaced by the plant-wide transfer and bidding program. On this point as well, the argument fitted the facts of the Philip Morris case. There were three departments at issue in that case — prefabrication, fabrication, and warehouse shipping and receiving— and the opinion gives no indication of there having been evidence of significant differences in the skills and abilities required between the departments. On the contrary, the court pointed out that the plaintiff in that case was seeking a truck driver job and that this job “does not depend upon progression from one classification to another in the warehouse shipping and receiving department.” Therefore, as Judge Gordon observed in the Duke Power Co. case, the factual situation was that “the policy at Philip Morris represented only a relaxation of earlier restrictions based on race” and that “Philip Morris exhibited no business purpose or reason for its transfer restrictions.” But the facts of this case do not in the least lend themselves to the argument. There is on the one hand no evidence from which it could be inferred that the requisite skills and abilities do not differ from one department to another. On the other hand, based on the evidence which it has heard on the point, the court finds that the requisite skills and abilities differ in substantial measure from department to department, that satisfactory job performance in one department is not an accurate predictor of satisfactory job performance in another department, and that the departmental structure of this plant is in fact based on the particular and distinctive type of work performed by each of the departments. (d) The plant-wide transfer and bidding plan sought by the plaintiff would similarly mean that an employee who has been working in another department performing duties unrelated to the duties of the vacant job would be entitled to claim the job. This might be a perfectly proper result in a case where the circumstances otherwise justified it and where the jobs in the departmental progression lines are not dependent on the prior jobs in the line for training and experience for the job to be filled. However, this case is one where the factual circumstances do not otherwise justify this result and where the court has found the facts to be that with the exception of the Carpenter Shop, the jobs in the departmental lines of progression provide significant elements of on-the-job training and experience for the successively higher rated jobs in the progression lines. Indeed, there is no dispute with this fact, as the Attorney General has agreed that “The record demonstrates that training is acquired in this plant on the job” and that “the job skills in the plant are acquired by on-the-job training.” For one example, the jobs of Utility-man and Ladle Helper in the Electric Furnace department provide training for the next higher rated job of Ladleman, so that the employees who have worked their way up through the Utilityman and Ladle Helper jobs are prepared to step into the Ladleman job and perform it satisfactorily and without creating a danger of injury to themselves and their fellow employees. But under the unrestricted plant-wide transfer and bidding system which the Attorney General has proposed, an employee who has been, working in another department in a totally unrelated job and has absolutely no training, experience, or familiarity with the hot metal ladles or their operation would be entitled to claim the Ladle-man job in accordance with his length of service with the Company. There is nothing but the arguments in the briefs that this could be accomplished, and the arguments of counsel, no matter how compelling, are not acceptable substitutes for evidence. Furthermore, there is on the contrary the evidence from which the court has found that the men working jobs in the progression lines at this plant are in fact dependent upon one another for their safety in a hazardous industry. It likewise cannot be assumed, in the absence of evidence, that the employees in this steel mill are in no danger of injury from the performance of the jobs around them by employees with less than the full amount of experie